The law shouldn’t surprise you with a jail sentence

February 28, 2019 | By TONY FRANCOIS
Navigate Waters Big

Americans working hard to make a living today face a complex array of agency regulations that micromanage our world in baffling ways. We can even land in prison for things we had no idea were illegal.

This gets worse when the maze of rules still fails to clearly explain the law in advance. Ordinary citizens face the cost of defending themselves in court, loss of use of their property, ruinous fines, and even prison, for things the agency wouldn’t say were wrong until after the fact.

This violates the rule of law, the basic idea that we are entitled to clear advance notice of what the law requires and prohibits, so that we can order our conduct accordingly, and that the law be simple enough that the ordinary person can avoid breaking it during the normal course of a day’s activity.

This is as true for federal environmental laws as it is for workplace regulations and other laws. The Clean Water Act, for example, threatens prison for those who violate its protections for “navigable waters.” The EPA and the U.S. Army both publish mind-numbingly complicated regulations defining “navigable.”

Most people are surprised that these regulations include a lot of ephemeral washes and small seasonal ponds that are bone dry most of the time. This is a trap for the unwary who never dream that the low spot on their farm or their home site, which collects some rainwater a few weeks a year, is a federally protected “navigable water.”

But as onerous and counter-intuitive as these regulations are, they still leave a lot of grey area that abusive enforcers can use to sue farmers and homeowners who have acted in good faith. Enforcers then use the cost of defending these suits, and the multi-million dollar penalties if the government wins, to leverage citizens with valid defenses into admitting liability and settling to avoid potential ruin.

PLF clients like Chantell and Mike Sackett, Peter Smith, Andy Johnson, Kevin Pierce, Duarte Nursery, Marquette County Road Commission, Tin Cup, LLC, Jack LaPant, and Joe Robertson have all been on the receiving end of abuse from the EPA and the Army under the Clean Water Act. They all fought back with PLF’s help, and their stories demonstrate that federal water quality regulation causes serious harm when the agencies wander away from regulating the industrial facilities and sewage plants that the Clean Water Act focuses on.

The current administration is proposing new regulations that narrow the interpretation of “navigable waters” to something more reasonable, following a February 2017 executive order from President Trump. They have made a decent start, but their current proposal still covers far too much land that is not “navigable” at all and is rarely even wet.

This morning I testified at an EPA hearing on the proposed regulations in Kansas City. You can read my full testimony here, but the core of it is that the agencies need to return to the text of the Clean Water Act itself, the best reading of which only authorizes regulation of rivers and lakes that are navigable in fact and useful to transport interstate commerce.

This reform is necessary for EPA and the Army to operate within their statutory authority, give ordinary citizens fair notice of what the law requires, and get federal bureaucrats out of micromanaging farming and home building and prosecuting regular folks for working in “waters” that float no boats.